Fix Congress with These 4 Steps

So I’ve been writing for this publication for about a year now. Mostly about law and politics. I’ve taken on some serious issues in provocative titles like The Flag Burning Debate Reveals the Death of Lincoln’s America,Everything You Know about Citizens United Is Probably Wrong,” and Our Civilization’s Fundamental Lie (spoiler: it’s land ownership). I’ve claimed that we can save humankind through the Second Amendment debate and that “House of Cards” is a dangerous show. I’ve taken the Clinton Democrats to task and scoffed at the 2016 Election. I’ve shown how affirmative action is done half-assed, and I’ve gone into the theory behind the freedom of expression. (P.S. I dipped my toe in the ocean of philosophy too, though that one’s not relevant here).

Before I go any further, I ask you all to take note of a fact. In writing these pieces—in putting these ideas in black and white, where anyone can find them—I willingly and gladly put my legal career in jeopardy. For the most part, law firms and judges don’t want people who say too much about politics, certainly not those who go a step further and rock political boats. So now you know something about me.

Towards the ends of all these pieces, I use the specific topics in order to make broad points about how seriously fucked our government is and about how our democracy is dead. The big picture that they paint is a grim one indeed. Further, I’ve been focused almost exclusively on prognosis, rather than diagnosis. That is, the closest that I’ve come to proposing ways of fixing the big picture is to suggest some kind of grass roots spiritual revolution.

Side note. I know that a “spiritual revolution” sounds like some lofty, ridiculous, impractical goal. It’s not, nor is it radical. There’s only two parts. First, love thy neighbor. This isn’t anything new; this is getting back to basics. Second, be yourself. More than anything, what the world needs you to be is genuine. And, if being genuine is a radical idea, then we seriously need to ask what the hell is going on here.

Be that as it may and setting the spiritual revolution to the side, a good number of people have asked me what I propose we do to make the grim picture a pretty one. Further, they want a practical answer that—at least at the start—utilizes current systems, and they want it backed by law and politics, seeing as I’m a lawyer who writes about law and politics, not spirituality.

Ask and you receive. Starting with this one, which is focused on Congress, I am going to do a series of pieces about constitutional amendments that we need. Understand that I am not so stupid as to believe that I have all the answers. Nor are these amendments that I propose silver bullets.

Rather, they are stepping stones. First, they would give the people the ability to take back a large amount of control over our government. From there, they would give the people more than enough room to evolve—give the spiritual revolution more than enough room to grow and take hold. Finally, once these dominoes tumble in the U.S., they tumble worldwide. In other words, what we’re going to talk about over these next few pieces are the steps towards global revolution.

And let me say for the record. I am more than willing to put all this into constitutional language, if any of you good-with-other-people types want to start the movement.

Note that, in this piece, I do not directly tackle campaign finance. To a great degree, I already have, and the issue is one that really transcends what we discuss here. Further, though money in politics is a huge problem, it’s also one of the easiest to fix. So, as you read, please keep in mind that dollar signs are always lurking under the surface.

Lengthen the terms for members of the House of Representatives from two to four years.

Today, members of the House of Representatives are always running for re-election. Our election cycles are longer than they have ever been, and the public has more access to information than ever before. These days, two years is hardly enough time for members of the House to catch their breath between elections. Thus, they are always in election mode.

And what does election mode mean? Well, above all else, it means that members of the House need to raise large sums of money in short periods of time. Elections are expensive. The conventional wisdom is that, from the moment they are sworn in, members of the House need to raise roughly $10,000 per week if they are to keep their seats.

From where does that money come? Certainly, the vast majority does not come from their constituents. I don’t care if someone represents the wealthiest district there is; there simply is no way for members of the House to fund re-election campaigns every two years without raising large sums from special interests and corporate donors. Today, a two-year term all but guarantees a bought-and-paid-for House of Representatives.

Furthermore, being always in election mode has a profound impact on the way members of the House introduce and vote on bills. You would think that the short term would make them more responsive to their constituents—that peering always down the barrel of re-election would force them to do the people’s work. That’s wrong. Rather, it forces them to work ceaselessly on behalf of their donors.

Worse, being always in election mode exacerbates partisanship and promotes congressional atrophy. The people are never more polarized than they are during election years, and this polarization of course finds its way into Congress. Indeed, it probably starts there. The point is that it’s a lot harder for members of the House to get anything done when they must always be running for re-election.

The Founding Fathers set the term for members of the House at two years for two inter-related reasons. First, they wanted high turnover in Congress. Second, they thought that giving the people the opportunity to vote every two years was going to ensure that high turnover. Yet, they drastically underestimated the power of incumbency—even the power of incumbency in their own time, to say nothing of ours, where it is much greater—and they had no way of knowing what our elections were going to become. In other words, the reasoning behind their decision does not fit modernity. Further, they expected future generations to tack on constitutional amendments far more frequently than we actually do. All in, the Founders would applaud this proposal.

So we double the term for members of the House. From there, we stagger the elections, so that half of it is up for re-election every two years. This is the first step to fix Congress.    

Impose term limits on all members of Congress.

It’s time, folks. Three terms in the House, at four years each. Three in the Senate, at six years each. And no more than twenty-five years total in Congress.

This issue already garners a lot of attention, and the reasons we need term limits have been well-articulated long before now. So there’s not a lot for me to add to the debate, nor do I want to repeat things that we already know.

I will, however, counter the most insidious argument that opponents of term limits make. They say “we already have term limits. They’re called elections.”

This is such a crock that it makes me want to gag. If you can make this argument with a straight face, then you probably work in politics, just like I’ve done in the past.

To say that our elections are as good as term limits is to ignore the glaring realities of our electoral system. To ignore the influence of money in politics, the power of incumbency, and the Republican-Democrat duopoly. To say that our elections are as good as term limits is to say that our elections are completely or mostly without flaw. Like I said, a huge crock.

And, even worse than being a pile of bullshit, this argument is insidious. In making it, politicians and politicos play on our underlying reverence for democracy, all the while obscuring the fact that our democracy is on life support. We need term limits for members of Congress, period. Anyone who tells you otherwise either has a vested interest or is brainwashed.

Ban partisan gerrymandering.

Partisan gerrymandering in not a sexy topic, yet, when we’re talking about fixing legislatures, it may be the most important one. The power that comes with the ability to draw legislative districts simply cannot be overstated.

I can talk about this for hours, having previously written a fifty-page law review article on the subject. It’s really hard for me to hit only the high notes here, so please forgive me if this all reads like it comes from a scatter-brain.

First, let’s start with some facts. Competitiveness in the House is detrimentally low. This is to say that they are too few districts where both Republicans and Democrats have a chance of winning. Now, one could argue that the reason for this is that people of similar political ideologies concentrate in particular geographic areas, and said individual would be at least partially right. Yet, if that was the whole picture, then the two dominant political parties wouldn’t need to give us districts that look like they were drawn by toddlers with crayons.

Further, one could argue that the lack of competitiveness isn’t really a problem—that, on the whole, it all balances out. This is flawed reasoning, as the “balance” is reflective not of the strength and will of the people, but of the strength and will of the political parties. Yet, even if it is flawed, this argument at least makes sense, as it embraces the simple truth that neither we humans nor our electoral systems are ever going to be perfect. Unfortunately, however, this same argument stops making sense the moment we add another layer: primary elections and the two-party duopoly.

Let’s consider an example. In Chicago, my hometown, Republicans simply do not win. This means that the real election is the Democratic primary. Right off the bat, this simple fact opens the door for huge problems. Though the Constitution clearly envisions elections, the same cannot be said of political parties and their works, of which primary elections are chief. The end result is that there are far fewer legal constraints on primaries than there are on generals, and there are far fewer legal protections for votes in primaries as compared to those for votes in generals. Simply put, when the real election is a primary one, the political parties have much more room for trickery and corruption.

Now let’s dive deeper into our example. What do the Chicago Democrats—unchecked by Republicans—do with the awesome power that comes from their ability to draw the legislative maps? Simple. First, they make it damn near impossible for other Democrats to challenge the incumbent ones. In other words, they draw the maps to entrench go-along-get-along incumbents. Second, they exact draconian retribution against incumbents who defy party leadership. Where there is one-party rule, legislators are at the mercy of the party leaders who draw the maps. The end result is that power consolidates in the hands of a few, and legislators who don’t vote the way that these few tell them to vote can expect to see their chances of re-election greatly diminish as their districts are re-drawn.

I’m not making this stuff up. Consider the recent and extreme examples of Chicago aldermen Robert Fioretti and Nick Sposato. These two were vocal, progressive opponents of neo-liberal mayors, first Richard M. Daley and then Rahm Emanuel. And, when it came time to re-draw the city’s map, Aldermen Fioretti and Sposato suddenly found that their houses were no longer in the wards that they represented. Two Democrats, in a blue city, drawn out of their districts for representing their constituents over party leadership. Their constituents said “we want these progressives to be our aldermen,” and the party leadership said “well, we don’t like them, so get fucked, peasants.”

All of this is more or less constitutional. I say “more or less” because, though every single Supreme Court Justice has opined that partisan gerrymandering runs counter to the principles enshrined in our Constitution, the Court simply cannot figure out how to spot and remedy an unconstitutional gerrymander. In other words, they cannot find the line between an okay amount of gerrymandering and an unconstitutional amount, nor—even when they assume for sake of argument that they have found this line—can they devise a way of fixing the unconstitutional ones. For these reasons, half of the Justices say “well, this must mean that partisan gerrymandering must not be an appropriate topic for the courts,” some others say “malarkey, let’s just do this thing in whatever way we can, even if it’s imperfect,” and one says “let’s wait and see.” Of course, if there is a constitutional amendment that specifically bans partisan gerrymandering and demands independently drawn maps, then all of the problems that the Supreme Court has faced evaporate.

Partisan gerrymandering is a tool of, by, and for the political parties, not the people. And, even when your preferred political party is the one that benefits most from a particular gerrymandered map, this benefit simply does not translate to you, the voter. It stays within the party, and the party uses it to consolidate power in the hands of the few, to squash internal dissent, to entrench incumbents who do as told, and to make legislative elections—both primaries and generals—all but irrelevant. It’s time to do away with this destructive practice.  

Make the Speaker of the House a nationally-elected office.

This is probably the most radical idea of the bunch. The Constitution gives the House of Representatives the power “to choose their speaker and other officers.” As it plays out today, this provision means that the political parties select the person who fills this role.

And what an important role it is! The amount of power that the Speaker has is wildly incommensurate with that held by the more junior members and even the committee chairs. The Speaker sets the agenda and determines which bills make it to the floor. This is to say nothing of the fact that he or she is third in the line of presidential succession.

And how does one become Speaker? One, seniority. You know: playing the game for a long time. Two, party loyalty. Not loyalty to the American people, nor even loyalty to the people in their districts, but loyalty to their higher-ranking party members—and to the donors who flood their party’s coffers, too.

Making the Speaker of the House a nationally-elected office untied to any one particular district has two primary benefits. First, it moves all those decisions about the House’s agenda and about which bills make it to the floor away from the political parties and towards the people.

Yet, the second benefit may be even more important. Many of the reasons that our democracy is on life support are founded upon the fact that, over time, the Executive branch has gained so much power. Though the three branches are supposed to be co-equal, today, there is a clear hierarchy: Executive, then Legislative, then Judicial. This is the natural result of two inter-related facts: (1) the president is elected by far more people than any single member of Congress, and (2) far more people rally around the president than around any single member of Congress.

So how do we counter this? How do we strengthen the Legislative branch, such that it is on the same footing as the Executive one, able to check and balance?

Simple. Make a nationally-elected legislative office.

The Speaker’s job is one that has a profound impact on the entire country, not just on the district that sends him or her to the House. Yes, in voting on bills, every member of Congress impacts the entire country. Still, the national effect of their votes pales in comparison to the national effect that the Speaker has in carrying out his or her duties. So, on its own, making the Speaker a nationally-elected office makes sense, even without factoring in all the ways that it restores the proper balance of power between the Legislative and Executive branches. Let’s get it done.

It’s On Us

Do you notice a theme common to all four points? Something that all of these congressional fixes share?

I do, too. All four proposals take power away from those who currently have a great deal—the incumbent politicians, the political party establishments, the elite donors—and give it to those who currently do not have anywhere near as much: the people.

What does that mean? Well, it means that, if we want changes like these, we cannot rely on anyone other than ourselves. The powers that be are never going to do anything more than pay lip service to ideas like these, simply because making these ideas a reality diminishes their power. In other words, the powers that be are never going to willingly do anything that makes them something less than precisely that—especially not amend the fucking Constitution. To rely on our current leaders to make these types of changes is akin to Oliver Twist begging for another bowl of gruel.

So, folks, we’re on our own. Luckily, we still have it within our power to do these things. In their enduring wisdom, the Founding Fathers created mechanisms by which the people could propose and pass constitutional amendments on their own. The question is whether we want to put in the immense amount of work. And you are the only person who can answer it for you.

It wouldn’t be easy. They’d fight us every step of the way. They’d pull out every trick in the book. And, even if we successfully dance around all their punches, they may still tell us to go fuck ourselves. But at least then we’d know beyond a shadow of a doubt that our democracy is truly dead.

And what would we do from there? Well, ladies and gentlemen, I can only speak for myself. And I say that a fella by the name of George Washington comes to mind.


Featured image by EFF Photos via Flickr.